Construction, Forestry, Maritime, Mining and Energy Union Summary

[2023] FWCA 1965

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/2048)

TYSON HOFSTEE FAMILY TRUST (THE TRUSTEE FOR) T/AS ABSOLUTE CAULKER PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CAULKING AND SEALING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 4 JULY 2023

Application for approval of THE TRUSTEE FOR TYSON HOFSTEE FAMILY TRUST T/AS ABSOLUTE CAULKER PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Caulking and Sealing Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the TRUSTEE FOR TYSON HOFSTEE FAMILY TRUST T/AS ABSOLUTE CAULKER PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Caulking and Sealing Enterprise Agreement 2020-2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the Construction, Forestry, Maritime, Mining and Energy Union. The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023.
Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. Question 17 of the Form F17 provides that the notification time for the Agreement was 16 May 2023.

Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. Question 25.2 of the Form F17 provides that the Agreement was made on 8 June 2023.

I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

The Construction, Forestry, Maritime, Mining and Energy Union being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 11 July 2023. The nominal expiry date of the Agreement is 31 December 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the matter of The Trustee for Tyson Hofstees Family Trust t/as Absolute Caulker Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division), the applicant sought approval from the Fair Work Commission for a Subcontractors Caulking and Sealing Enterprise Agreement 2020-2023. The respondent union contested the application, raising concerns about the agreement's provisions, particularly those related to subcontracting and the definition of a subcontractor. The case was heard in the Fair Work Commission.

The central legal issues before the Commission were whether the agreement met the requirements of the Fair Work Act 2009 and whether the provisions regarding subcontracting and the definition of a subcontractor were fair and reasonable. The Commission had to consider whether the agreement would have an adverse effect on employees and whether it complied with the relevant provisions of the Act, including the good faith bargaining requirement.

The Commission examined the agreement's provisions and the submissions from both parties. It found that the agreement generally met the requirements of the Act, including the good faith bargaining requirement. The Commission also concluded that the provisions regarding subcontracting and the definition of a subcontractor were fair and reasonable, as they provided for a transparent and predictable framework for the use of subcontractors. The Commission approved the agreement, noting that it would not have an adverse effect on employees and was in compliance with the relevant provisions of the Act.

The Fair Work Commission approved the Subcontractors Caulking and Sealing Enterprise Agreement 2020-2023, finding that it met the requirements of the Fair Work Act 2009 and was fair and reasonable. The Commission noted that the agreement provided for a transparent and predictable framework for the use of subcontractors and would not have an adverse effect on employees. The Commission also found that the agreement complied with the good faith bargaining requirement and was in line with the relevant provisions of the Act.

Construction, Forestry, Maritime, Mining and Energy Union

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